The Law Offices of Lawrence D. Rohlfing has represented the disabled since 1985 before the Social Security Administration, District Courts across the country, Circuit Courts of Appeal, and the United States Supreme Court.
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Wednesday, August 26, 2015

ODAR Hasn't Vetted POMS ... So What?

I attended a bench bar meeting at the Los Angeles US Attorney's office for the federal social security practice in the Central District of California last week. AAJ Gerald Ray spoke on behalf of SSA. He waxed eloquent about statistics and the need for ALJ decisions to follow policy. The latter point begs the question -- where do I locate agency policy.

So I asked the question, does the Appeals Council consider POMS to constitute agency policy? Judge Ray answered the question directly enough; he said "no."

Never satisfied with the response of the government, I thought we might unpack that comment in context of Judge Ray's oration and, what the heck, the Act, regulations, and the rulings.

SSA receives 2.8 million claims for disability each year. Of those eventually granted, SSA grants 75% of those claims in initial or reconsideration stages. ODAR receives 500,000 claims per year. ODAR grants less than half of those making 25% of the findings of disability. So who are the experts at disability adjudication, the dog or the tail?

So it can't be that the part of the agency that publishes POMS doesn't know what it is talking about. Clearly it does and directs the state agencies nationwide on how to exclusively adjudicate 2.3 million claims annually without the interference or oversight of ODAR, thank you very much.

The problem arises for claimants that shift during the claim. They change age categories, past work ceases to have relevancy, or the medical evidence changes in a material way. If the substantive rules effectuating the statute and regulations change too, then the program is not stable and the failure to have policy apply from top to bottom enhances the lottery effect of a claim for benefits.

SSA does have a caveat on the published e-version of POMS:

Please note that this document is intended for SSA employees. It contains technical terms and instructions that will be unfamiliar to you. If you have difficulty understanding these materials, please click on this link to the Social Security Handbook, which is written in plain language for use by the public.

Does the Handbook contain agency policy. Not as far as anyone can tell. SSA lists POMS as one of its Current Program Rules. The agency lists the Handbook as one of the Social Security Program Rules but oddly not as current. More importantly, Judge Ray listed HALLEX as binding but its status is on the same category of POMS as a current program rules set.

The regulations list POMS as other written guidelines that instruct, interpret, clarify, or administrate. 20 CFR sec. 404.1602. The state agency "will" comply with other written guidelines. Sec. 404.1603. SSA can find that the state agency failed to meet the applicable standards if it does not follow POMS. Sec. 404.1671.

SSR 00-4p states that the agency cannot accept evidence from a vocational expert of specialist that conflicts with agency policy. SSR 13-2p states that the agency requires all adjudicators at all levels of review to follow agency policy and specifically lists POMS right alongside HALLEX. And other rulings contain cross-references to POMS -- as in, for more information on this topic, see also POMS.
Okay, ODAR doesn't want the lowly technical people to tell its legally trained staff how to adjudicate claims. I get that. But the statute and the issue of disability are medically and vocationally technical, not legally technical. Using legal techniques and a quasi-judicial format can unwrap the issue of disability, but it remains a mixed medical and vocational issue.

I wrote about the transferable skills analysis back in May. Judge Ray told me off the podium and privately -- but not confidentially -- that ODAR has vocational experts and no need for POMS dissertation on a transferable skills analysis. I responded that the agency did not pay VE witnesses enough and that we get what we pay for in life. He conceded that existence of a problem. The question in this complex question of medicine and the ability to work is whether we have standards (POMS unless contrary to the regulations or the statute) or just let the ALJ corps, medical experts, and vocational experts do and say whatever their own heuristic and biased view of the world tells them is the right result for this case.

One last point: after 30 years, I have a pretty good handle on this stuff. I can understand the technical writing in POMS. I don't need the dumbed down version in the Handbook. But if POMS is not interpretative of ambiguous regulations and it doesn't matter, then delete it. The whole thing. To leave it up and when I cite say - "psych, just kidding. We don't follow POMS" - well that is just a lie published on the internet and available at the District Office and ODAR says it is worthless. As I said to Judge Ray during the open session, "we'll see."

Almost 3 million claims deserve better than a lottery. Public confidence in a system of administrative jurisprudence that touches everyone requires a government tell it the straight substantive and procedural rules. If ODAR hasn't bothered to consider an issue, then it should follow POMS and vet something else later if ever.

The agency obviously differs and uses POMS only when it likes POMS or the result pushed by POMS. Inconsistent and intellectually dishonest.